1999 (9) TMI 258 - AT - Central Excise

Tribunal denies modification of stay order citing brand dispute, financial stability, and procedural fairness.

The Tribunal rejected the appellant's application for modification of the stay order dated 29-04-1999, directing compliance within two months. The ... Stay/Dispensation of pre-deposit - Modification of order Issues Involved:1. Review and/or modification of the stay order.2. Prima facie case and brand name dispute.3. Financial hardship.4. Principles of natural justice.5. Applicability of latest Tribunal decisions.Detailed Analysis:1. Review and/or Modification of the Stay Order:The appellant filed an application seeking review or modification of the stay order No. C-I/861/29/4/99/4-5-1999, which directed a pre-deposit of Rs. 18 lakhs towards duty for an unconditional stay. The application challenges the stay order on the grounds that the genuine submissions of the applicant were not properly appreciated, and the Tribunal erroneously concluded that the applicants have no prima facie case.2. Prima Facie Case and Brand Name Dispute:The appellant contended that the Tribunal erroneously viewed the admission by the director of the applicant company regarding the logo 'Pethe' belonging to PEPL. This admission was disputed by the Chairman of the applicant company, B.W. Pethe, in his statement dated 9-4-1998. The appellant argued that the logo 'Pethe' is not registered under the Trade Mark Law and should not be considered a brand/trade name. The case of R.G. Cotton Industries v. C.C.E., Patna was cited to support this argument, stating that a family name or an unregistered logo does not constitute a brand name for the purposes of Notification 1/93.3. Financial Hardship:The appellant argued that they are facing significant financial hardship, as evidenced by their balance sheet and poor sales performance. They claimed that they have heavy liabilities and insufficient liquidity to meet unforeseen circumstances. However, the Tribunal noted that the balance sheet showed sufficient means to pay the duty amount, with sundry debtors and cash in hand and at bank indicating a relatively stable financial position. The Tribunal concluded that the financial hardship was not substantiated sufficiently to warrant modification of the stay order.4. Principles of Natural Justice:The appellant argued that the principles of natural justice were not observed, claiming that they were not given an opportunity to reply to the arguments of the JDR and that the Commissioner failed to appreciate their submissions properly. However, the Tribunal found that the applicants were given ample opportunity to present their case, including the issuance of a show cause notice, the filing of a reply, personal hearings, and the submission of written arguments. The Tribunal concluded that there was no failure of natural justice in the adjudicating process.5. Applicability of Latest Tribunal Decisions:The appellant cited the latest decision in R.G. Cotton Industries v. C.C.E., which appeared in the May 1999 issue, arguing that it supports their case. The Tribunal acknowledged that modification is permissible in light of later decisions supporting the appellant's stand on the merits of the issue. However, it was noted that the subject matter of the cited decision was not similar to the issue involved in the current case. The Tribunal concluded that the applicability of the cited ruling should be considered during the appeal on merits, not at the stay order stage.Conclusion:The Tribunal concluded that the appellant did not make out a case for the modification of the stay order dated 29-04-1999. The application for modification was rejected, and the appellant was directed to comply with the stay order within two months from the date of receipt of the order and report compliance on 29-11-1999.